Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

I rise to provide some comments in relation to a recent case in the Supreme Court of the Australian Capital Territory and on how it bears to the interpretation of parliamentary privilege and its application in this country. This is a matter which has caused me a degree of concern somewhat since the introduction in this place by Senator Lambie—and I deeply respect her for doing that—of the Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022. Senator Lambie prepared and submitted that bill in response to an interim recommendation from the royal commission into the suicide of Defence Force members and also veterans.

One of the recommendations the royal commission made was that there needed to be some sort of exemption in the Parliamentary Privileges Act in order to enable, for example, committee reports of this Senate chamber to be entered into evidence for the purpose of considering and discharging the functions and remit of that royal commission. What has deeply troubled me in relation to this matter is that it appears that in courts, royal commissions and coronial inquests the view is being taken—an extraordinarily, in my view, limited, narrow interpretation of the Parliamentary Privileges Act—that, for example, the report which was prepared by a committee of this parliament in 2017 called The constant battle: suicide by veterans cannot even be tendered into evidence in a court or royal commission for the purposes of establishing as a matter of fact that a committee of this parliament has made certain recommendations.

In my view, that is an incorrect application of section 16(3) of the Parliamentary Privileges Act, and it causes me deep concern for this reason. A royal commission has been established for the purpose of assessing government responses to reports in relation to veteran and defence member suicide, and one of the particular terms of reference is to consider the action which governments—and it doesn't matter of which persuasion—have taken in response to those reports. So, in a situation where the Senate Foreign Affairs, Defence and Trade References Committee, senators in this place, prepared this report, The constant battle: suicide by veterans, in 2017, the royal commission has taken the view—and certainly courts and coronial inquests into the deaths of Defence Force members and veterans have taken the view, in many cases—following submissions made by legal representatives representing the Commonwealth, that they can't have any regard to the recommendations made by a committee of this Senate and, therefore, have not been able to take into evidence, or have not accepted into evidence, the Senate Foreign Affairs, Defence and Trade References Committee's report from 2017, The constant battle: suicide by veterans. And I think that's wrong. I don't see how the royal commission can undertake its task without considering a report such as that committee's report.

In my view—and, I think, in the view of the person who referred this to me—the case in the Supreme Court of the Australian Capital Territory of Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No. 2) [2023] ACTSC 168, the judgement by the Hon. Acting Justice Curtin, applies the law as I read the law and as I think it was intended to apply. I should say that, even though this is a matter being considered by the ACT Supreme Court, the ACT applies section 16 of the Parliamentary Privileges Act 1987 in relation to matters such as this. In that case, the parliamentary material tended into evidence consisted of extracts of Hansard recording statements made by the ACT Legislative Assembly, budget papers tabled in the ACT Legislative Assembly, a report of the Commonwealth Joint Standing Committee on the National Capital and External Territories dated October 2018 entitled Commonwealth approvals for ACT light rail, and submissions made to that joint standing committee for the purposes of preparing that report. And, in this case, objection was taken on the basis of section 16(3) to the tendering into evidence of that material, and the judge found that the material could be tendered and should be accepted into evidence. I quote from paragraph 45 of the decision:

The Parliamentary Material is tendered to prove a fact. It is then for me to determine whether the purpose of the reliance on that material involves any of the matters set out in s 16(3).

Going back to the committee report entitled The constant battle: suicide by veterans, prepared by senators in this place, in my view the tendering of that report to the royal commission to establish as a matter of fact that there was a committee inquiry and to establish as a matter of fact that certain recommendations were made by that inquiry is totally analogous to the situation that was considered by the Supreme Court in this case. I quote again from the judgement, paragraph 46:

In this case the Parliamentary Material is simply a fact or facts upon which the defendants say they relied in making the alleged representations and they will ask me to make one or more findings to the effect that it was objectively reasonable for one or more of them (putting all their other defences aside) to rely upon that material in making the representations alleged (if they were made). As such, no inference could be sought to be drawn from the Parliamentary Materials.

I think this judgement is totally analogous with the proposed tendering in evidence to the royal commission of the committee report which has been prepared by senators in this place. That committee report should be received into evidence to establish that, as a matter of fact, there was a committee inquiry and recommendations were made by that committee. Then, when the royal commission considers that report, it will not be a question of drawing inferences from that parliamentary material; it will be a question of putting the onus on the legal representatives of the government to establish what the government did in response to those recommendations. That is not drawing an inference from that parliamentary material. The assessment being made by the royal commission is in relation to what the government—again, a government of any persuasion; it doesn't matter—did in response to the recommendations which were made, as a matter of fact, by a committee of this Senate.

I suggest that the Attorney, the Attorney-General's Department and those who are representing veterans, including those who are representing the families of veterans, have regard to this ACT Supreme Court judgement, because I think it is absolutely relevant to the matters which have been raised by the royal commission. It is relevant to the Parliamentary Privileges Amendment (Royal Commission Response) Bill, the private member's bill which was brought into this place by Senator Lambie.

In conclusion I'll say this. This is a matter which is of intense interest to me as a senator and as someone who considers myself a custodian, as we all are, of this institution. I again congratulate Senator Lambie for bringing the private member's bill into this place. I will continue to look into these matters and I will continue to work with Senator Lambie to try and address some of these issues in relation to parliamentary privilege where I think it is being misclaimed, inappropriately claimed, against the intention of this Senate.